House of Lords (Hereditary Peers) Bill

Lord Garnier Excerpts

Report stage
Wednesday 9th July 2025 Lords Chamber

[Lord Ashton of Hyde (Non-Afl)]

Exactly. The attorney under a lasting power of attorney has duties. If he or she was exercising that duty within the realm of the Act, they would be acting lawfully, and they would establish capacity using the advice that is contained in the code of practice. I beg to move.

[Lord Garnier (Con)]

My Lords, I will be brief because I cosigned and spoke to this amendment in Committee. The amendment seems to me to be bathed in common sense and one that this House should accept without question. It is a timely amendment that is also based in humanity. As I explained last time, there are two types of powers of attorney, but Section 1 of the 2014 Act does not seem to come within either of them. Therefore, to avoid the confusion that currently seems to be abroad, we should make that confusion go away by agreeing to my noble friend’s amendment.

We have heard something of what the Clerk of the Parliaments may or may not think, but, with the greatest respect to him, what he thinks is neither here nor there. This is a government Bill, and presumably the Government’s policy is not to permit this amendment. They must justify their refusal to accept the noble Lord’s amendment, and they cannot hide behind their lawyer or our clerk.

The simple point is: are we to be humane? Are we to allow those who have lost their capacity to be released from the burdens of membership of this House of Lords, or are we to leave them to hang on in some undignified way? My noble friend’s amendment is sensible, humane and timely, and I support it with great vigour.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful for that, and perhaps I can offer a helpful way forward. This amendment is identical to one tabled in Committee, except that it seeks to permit Peers to retire by allowing a person holding a lasting power of attorney to sign the notice of retirement, which is then given to the Clerk of the Parliaments.

The debate we had in Committee was very useful. As I think the noble Baroness, Lady Stowell, said, it was an example of the House at its best, coming together to resolve an issue concerning the dignity of our Members that we all need to be resolved. There was cross-party support for addressing this issue, which has lingered unresolved for far too long, and which the House should have addressed a long time ago.

At the Dispatch Box last time, I made a commitment to report back to the House, and I am able to do so positively today. I will give some of the background of why this matters to me: I was concerned about it before I was Leader of the House, when I was Leader of the Opposition. I know that previous Leaders and Chief Whips were given the same advice as I was—that it was not possible for somebody to be retired by lasting power of attorney or by power of attorney.

I had a case with a colleague whose health was declining, the family wished that Member to retire, and when they approached the Clerk of the Parliaments they were told that the Member could not be retired but he could take a leave of absence. I found that completely and totally unacceptable, because we did not give that Member the opportunity to leave this House with dignity. I investigated further, and I was shocked to discover that they would not even accept a power of attorney. Given that the circumstances in which a power of attorney is accepted are significant, for this House not to accept it seemed rather strange, and I thought it was unacceptable. You can sell your family home, you can resign somebody as a director of a company, but you could not retire from the House.

I raised this matter with the Clerk of the Parliaments, but I also sought my own government legal advice. I have discussed the matter with noble and learned colleagues around the House and the Clerk of the Parliaments, and we reached an immediate practical solution. Members may or may not have seen the Procedure and Privileges Committee’s report. The Clerk of the Parliaments contacted me to say that, having reviewed the legal advice available to him and his predecessors, subject to safeguards—which I will come on to—he would be willing to accept the notice of resignation submitted to him on behalf of a Peer who has lost capacity, holding either a lasting power of attorney covering property and affairs, executed under Section 9(1) of the Mental Capacity Act, or an enduring power of attorney made prior to the 2005 Act coming into force. The safeguards were that the clerk would see the power of attorney, which is a standard procedure in all cases, and that if there was any doubt or any concern, he would raise that with the Whips.

[Lord Garnier (Con)]

Will the Minister give way?

[Baroness Smith of Basildon (Lab)]

I have a number of other points to make that might be helpful.

[Lord Garnier (Con)]

I will be brief. What is the basis of the clerk’s—

[Baroness Smith of Basildon (Lab)]

As to the noble and learned Lord’s impatience, I ask him to bear with me as I go through this.

The basis of that is the legal advice received on that. I understand the point made by the noble Lord, Lord Pannick, about not sharing legal advice, even though that is a commonly held view in government, but I will come to that as I may have a way forward that will help him. I think he understands the risks of sharing legal advice and knows full well why the Government do not share it.

We have moved on, and it is now possible. There are families of noble Lords who presently are looking at this to ensure they can retire Members who are ill. That decision is based on a lasting power of attorney or an enduring power of attorney, so we are clear that we can accept both of those.

The noble Lord referred to the risk that the position may change again. The matter has already been considered and approved by the Procedure and Privileges Committee, of which the noble Lord, Lord True, is also a member. The report that I showed was published on 24 June with details, and the relevant amendments have been made to the Companion. To state the obvious—I am sure that noble Lords understand this—to reverse that would require further consideration by the committee and then notification to the House. I am confident that the position is practical and sustainable and will not be reversed. The House has a clear view on this matter: Members should be able to retire with dignity through power of attorney. We should let that work through and ensure it takes full effect.

Having listened to the discussion that has taken place, I want to proceed further. I have long held the view, and have discussed it with noble Lords across the House, that this House should take some responsibility for managing its own affairs. The question is: does this have to be in statute in order to take effect? As I have said previously on issues such as retirement and participation, I want the House to step up to its own responsibilities.

I question whether we need primary legislation to resolve this, and I do not think we should pass legislation that is not needed, but I am also concerned that as drafted, the amendment could risk unintended consequences. Unlike the report of the Procedure and Privileges Committee, this amendment makes provision only for lasting power of attorney. This is part of a broader area of law that involves both enduring power of attorney, which is recognised in the Procedure and Privileges Committee report, and other forms of legal authority, such as the ordinary power of attorney, more regularly used when someone manages an individual’s affairs when they are temporarily abroad or unwell.

There are also the provisions that the noble Baroness referred to in the Mental Capacity Act 2005, and legislation prior to that which was carefully developed and set out when a lasting power of attorney or an enduring power of attorney should or should not be relied upon. Those ensure that safeguards are in place. By singling out just the lasting power of attorney and making it so that a notice signed by a person holding one is effective in all circumstances, the amendment makes no provision for the wider context. This is a complex issue. I have to admit to noble Lords that when I first embarked on this, I thought it was a straightforward issue, and the more I have looked at it, the more complex it has become. I am wary of looking at simple legislative fixes for what are complicated issues.

Jimmy Lai

Lord Garnier Excerpts

Thursday 22nd May 2025 Lords Chamber

[Lord Collins of Highbury (Lab)]

The noble Lord raises a very important subject. We will not tolerate any attempts by foreign Governments, whoever they are, to coerce, intimidate, harass or harm their critics overseas. The safety of Hong Kongers in the United Kingdom is of the utmost importance. Hong Kong Police issuing arrest warrants encourages reckless behaviour on UK soil and damages Hong Kong’s reputation. On Christmas Eve, the Foreign Secretary strongly condemned the Hong Kong Police’s targeting of individuals exercising their right to freedom of expression. Following reports of letters sent to UK residents, FCDO officials again raised the matter with the Chinese embassy. Counterterrorism police are dealing with the referral, and officers are in contact with the individuals concerned. As I say, we will not tolerate such interference in our democratic processes.

[Lord Garnier (Con)]

What have been the practical consequences of the many conversations the Government and their representatives have had with Hong Kong and other Chinese authorities? There is a lot of “raising the issue”, but we are looking for some consequences.

[Lord Collins of Highbury (Lab)]

Do not underestimate the fact of raising these issues. The noble and learned Lord knows full well that the Chinese Communist Party does not like being criticised for these actions. It is important that we continue to raise this at every possible level, particularly in international fora, which we will continue to do. It is absolutely staggeringly awful that such a man—a British citizen—should be in prison just for expressing his opinions, and we will continue to raise this at every possible opportunity.

Journalists and Media Workers: Safety and Security

Lord Garnier Excerpts

Thursday 24th April 2025 Lords Chamber

[Lord Garnier (Con)]

My Lords, I begin by thanking my noble friend for initiating this debate and by referring to my interest as a member of the media law Bar.

In the brief time available, I will mention only one subject: Jimmy Lai. He is a journalist and newspaper owner. He is 77 and a British citizen. He is a prisoner of conscience who has been unjustly imprisoned in Hong Kong for over four years. His 12-month trial for national security offences and sedition is now adjourned until 14 August. For the rest of the hot Hong Kong summer, he will be incarcerated in a small, hot cell. He is on trial because he is a journalist and a pro-democracy activist. This is an affront to the rule of law, and to his and our internationally recognised human rights. It shows up the authorities in Hong Kong and China as weak, afraid and foolish.

I urge the Minister and the Government as a whole not to forget Jimmy Lai. I urge noble Lords in every part of this House not to forget Jimmy Lai. When at least one democratically elected western leader is appeasing a murderous thug—the very type of person he and we should be confronting—this House, Parliament, Government, country and democracy must stand up for Jimmy Lai and let China know that he is not forgotten.

House of Lords (Hereditary Peers) Bill

Lord Garnier Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, although I am also a lawyer, I will be brief because the noble Lord, Lord Grocott, has a point. I am rather against rules that require people to be appointed to this House by virtue of offices that they have held. As a former holder of the least distinguished of the offices listed in the generous Amendments 58 and 59 of the noble Lord, Lord Parkinson, I certainly did not feel entitled to such elevation, although the work I did in that office emboldened me to try my chances with HOLAC.

The glory of the Cross Benches—if that is not too strong a word—lies in the very diverse backgrounds of those who are here. I fear that a mandatory inflow of establishment figures, rigidly predefined and appointed irrespective of any scandals that may have attended their time in office, would tend to reduce that variety, in particular by inhibiting the appointment of people’s Peers, about which I have spoken in a previous debate.

With respect to the noble Lord, Lord Parkinson, I would make an exception for the very senior judges named in the amendments of the noble Lord, Lord Wolfson, for the reason that he gave: judges at that level often have impartially to determine cases to which the Government are, and sometimes even the Prime Minister is, party. That is what distinguishes them from Chiefs of the Defence Staff, Cabinet Secretaries and so on. They have to choose, in any case, on the basis of the law, whether they are on the Government’s side or not. That is why, between judges of equal rank, the state has to be scrupulously even-handed about conferring honours or preferment.

I am sure that every Government see the priceless benefit that former Supreme Court judges bring to our deliberations, but such judges should not be appointed to this House, any more than they should be given knighthoods or damehoods, simply because the Government of the day like the cut of their jib. Something less arbitrary is required. Either all should be appointed, as proposed by the noble Lord, Lord Banner, in Amendment 68—which would be my own preference, I hope not only because, like him, I am awaiting a judgment from the Supreme Court—or, if that is thought to be too rich a diet, the honour should be rationed, as proposed by the noble Lord, Lord Wolfson, on the basis of rank. I hope Ministers might agree; I hope they might even be prepared to say so.

[Lord Garnier (Con)]

My Lords, I am very attracted to what the noble Lord, Lord Anderson, has just said. I find what my noble friend Lord Banner had to say extremely attractive, and I hope that the Government will find it their—

[Viscount Hailsham (Con)]

Wisdom?

[Lord Garnier (Con)]

Yes, wisdom—I was clutching for the word. I hope they will find it in their wisdom to reach a conclusion similar to that advanced by my noble friend.

Quickly, while the noble Lord, Lord Grocott, is still in the Chamber—

[Noble Lords]

Oh!

[Lord Garnier (Con)]

He is never far absent from it. This series of amendments does not appeal to the noble Lord because it does not deal with the hereditary peerage, but of course, right in front of us—of me—is my noble friend Lord Hailsham, the third Viscount, whose grandfather and father were both Lords Chancellor and therefore senior members of the judiciary in their day. He demonstrates the agility of the British constitution, in that, although a hereditary Peer, he sits here as a life Peer.

[Viscount Hailsham (Con)]

I cannot be culled.

[Lord Garnier (Con)]

Exactly; and we are all the better off for that. However, I think it very important to recognise that, although our constitution is odd, strange and, in many ways, not very neat, it does function all the better by having people from a variety of backgrounds in this place.

The fact that we do not any more regularly have the presence of what used to be called Law Lords, and now are justices of the Supreme Court, is a disbenefit to us. Also, I suspect that there was a time when the Law Lords gained advantage by, if not speaking and voting in the Chamber, at least being here and listening to or discerning the political mood of the moment. This is particularly so when they are dealing with cases involving public policy. I suspect that we have missed a trick by informing the Supreme Court and our being informed by it in our respective deliberations.

[Lord Bellingham (Con)]

I am very grateful to the noble and learned Lord for giving way. He will recall that, when we both became MPs a while back, we attended APPGs regularly. It was customary at those to see a number of sitting Law Lords in attendance—obviously, never making controversial points but adding a great deal of wisdom and knowledge to the work of the APPGs.

[Lord Garnier (Con)]

My noble friend was obviously a keener member of APPGs than I was, but I am sure he is entirely right.

None the less, I think it important that we in this House, and the Supreme Court, for its part, should mutually benefit from each other’s membership. I hope the Government will accede to my noble friend Lord Banner’s amendment, even if it does not go as far as my noble friend Lord Wolfson asked for in his.

I heard two particularly hurtful and outrageous suggestions this afternoon. One was from my noble friend Lord Wolfson: that he was not in the least bit bothered by the submissions from Members of his own Back Benches when he was a Minister.

[Lord Wolfson of Tredegar (Con)]

When I said, “the Opposition”, I meant the Opposition as then constituted; anything that came from our own side was obviously of the highest quality.

[Lord Garnier (Con)]

I was fishing for that compliment —and it does take a lot of effort. Anyhow, the other outrageous thing was my noble friend Lord Parkinson claiming that exceptionalism from lawyers was something to be criticised; I find that very distressing.

I will finish on this point. I cannot compete with my noble friends Lord Wolfson and Lord Banner, or indeed the noble Lord, Lord Anderson, on the number of times I have appeared in the Supreme Court, and I am certainly not awaiting a judgment now, but the last time I appeared there was in 2019, when I had the joy and honour of being against my noble and learned friend Lord Keen of Elie. He was acting for the Government and I was not. I had the advantage of being able to describe his client, the Prime Minister, very frequently as “the defendant”.

[Lord Hope of Craighead (CB)]

My Lords, I hope the noble Lord, Lord Grocott, will forgive me for intervening. I certainly do not wish to prolong these proceedings, and I agree with a great deal of what he said about their irrelevance to the Bill, but I should say a word because, as it happens, I am a former holder of two of the offices referred to in these amendments—first as Lord President of the Court of Session, later as a Law Lord, and later still as a Justice of the Supreme Court—so I can say a little bit about what these amendments might mean for them and for the House.

As far as the Lord President is concerned, I think the noble Lords, Lord Wolfson and Lord Anderson, will be alarmed to know that I received a peerage not when I was appointed as Lord President but after I had been serving as Lord President for about five years. It came to me as an honour in the New Year Honours List, for which I was, of course, extremely grateful.

A few years later, I became a Lord of Appeal in Ordinary, but I was already a Peer, so I did not have to become another form of Law Lord—that is, a Law Lord Lord—as I was already a life Peer. I thought that would see me through until retirement, but in 2003, when I was travelling home to Edinburgh and was in the lounge at Heathrow Airport, I was greeted by an announcement on the television set that the body to which I belonged—the Law Lords—was being abolished and that a new Supreme Court was to be created. So it was that, when the Constitutional Reform Act 2005 was enacted, I became disqualified as a result of Section 137. I never came here during that time, except possibly once to sit on the steps of the Throne to see what was going on. It was only after I retired that I was able to come back here because the disqualification was lifted.

I do not remember there being an agreement, as it were, that at some stage the Justices of the Supreme Court would be granted peerages. Certainly in 2003, when the whole issue blew up, there was very strong resistance to the judges being in the Lords at any time, whether serving or retired. The noble and learned Lord, Lord Falconer of Thoroton, knows where the bodies are buried, not I, but there certainly was that resistance. I do not recall any undertaking and nor was it buried under the sofa, because it was quite a strong feeling at the time. There it is—that is what the position was at that time.

So far as the amendments are concerned, I will say a word about the Lord President. The Lord President’s place of work is as a judge in Edinburgh. I found it an extremely demanding and time-consuming job. I came here to take the oath after I received my peerage and I came later on, for one day, to make my maiden speech, but I cannot remember coming at any other stage as Lord President. My predecessor, Lord Emsley, was in much the same position. He received a peerage after he had been serving as Lord President but he very rarely, if ever, came to speak.

Those were pre-devolution days. Now, the situation has changed markedly. The system over which the Lord President presides is devolved, and much of the law that he and his colleagues in the court look at is devolved, so the occasions for the Lord President feeling justified in taking time to come to London to sit and speak in the House of Lords will be very few and far between. The same would be true, with respect to the noble and learned Lord, Lord Wallace, of the Lord Chief Justice of Northern Ireland. It is a different matter after retirement, of course, but as serving judges their place here would be difficult to justify.

So far as the Supreme Court is concerned, of course, its place of work is not here—it is just across Parliament Square—but I can say, having worked there for four years, that it seems a very long way from this House. In the summer months you have to fight your way through the crowds to get here from there, and, of course, there are all the problems of finding a place and finding an occasion to speak. One thing we have lost, inevitably, is the connection with the House, which I felt very strongly as a serving Law Lord: I used to come here, not to take part very much but to listen to debates and understand what was going on. That connection and the wish to participate has been lost.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, I have taken a certain interest in this issue because a Peer who was extremely kind to my wife and me when we were young academics, and was himself then a senior diplomat, was the case in point.

This is something which needs sorting. It can be sorted by either a change in Standing Orders or an Order in Council. If that is not allowed, it needs legislation. We have just passed a short Bill through this House, the Church of Scotland (Lord High Commissioner) Bill, which covered one extremely small element that was forgotten or not allowed by the Church of Scotland in the Roman Catholic Relief Act 1829. If we can do that, then we can add, if necessary, a short amendment to this Bill to have that effect.

As I walked through the Lobby the other day, another Peer, who happens to be a relative of the Peer in question, said to me, “This is not just a single case. Until we have agreed a retirement age, we are likely to be facing this again and again with others”. We all know that there have been cases of Peers who have continued to come here as they begin to lose their mental capacity.

I have another reason for intervening on this. I recall my mother, aged 93, trying to sign a power of attorney for me to act on her behalf. Her paralysis had reached a point where she was unable to sign and thus not able to confer the power of attorney, despite being completely in her right mind.

This can be done. We are entitled to ask the Government that, by Report, we have clear advice on whether it has to be done by legislation or can be done by an Order in Council or a change in Standing Orders. I know that there is conflicting advice on this, because I have taken some interest in the case.

I know that the Government’s preferred outcome is that there should be no amendments to this Bill. However, this is a Bill about some further reform of the Lords, and we are unlikely to see another one for some time. Therefore, this House is entitled to say, as it goes through, that we are interested in some further reforms and that some further limited reforms might appropriately be attached to this Bill. That is what we are now discussing.

I look forward to the Government making an announcement at the start of Report on what further changes in the structures, Standing Orders and procedures of this House they propose, what further consultation on legislative changes they have in mind and when they propose to complete them, so as to help the passage of this Bill through the House. I strongly support this amendment. I do not mind whether the changes are made in one form or another, but they are simple to make, and it should be done.

[Lord Garnier (Con)]

My Lords, as a signatory of the amendment, perhaps I may make one or two points in support of my noble friend Lord Ashton.

A lasting power of attorney gives the attorney a power to make decisions about two sets of things—health and welfare, and property and financial affairs. Under health and welfare, the attorney can deal with your daily routine—washing, dressing and eating. They can make arrangements for your medical care, for moving into a care home and for life-sustaining treatment. They can make use of that power when you are unable to make your own decisions.

A property and financial affairs lasting power of attorney can be used as soon as it is registered and with your permission. That allows the attorney to manage a bank or building society account to pay bills, to collect benefits or a pension, and, as my noble friend Lord Ashton mentioned, to sell your home. These are big decisions in both types of power of attorney. However, as he pointed out, what they cannot do is enable you to retire from this House when you have lost your faculties.

I am particularly interested in this amendment because, having been on the Conduct Committee for the last three years—I came off it in January—it appeared to me and perhaps to other members of the committee that loss of mental capacity is something that this House will have to deal with in a humane but none the less determined fashion. Had the noble Lord, Lord Harris of Haringey, been making that point about this being out of scope of this Bill in a court, I would have said it was a mere pleading point and, “Shall we just get to the substance?” The substance is that this is an issue—the noble Lord, Lord Wallace, was right to address it—that has to be dealt with, if not within this Bill then in some other way by the House, because we are facing a growing and difficult problem of people who are beginning to fail to understand that they should no longer be here. It may be cruel to expel people, but if they could make up their own mind, they would do so. We need to cater for those who have lost the ability and the capacity to make that decision.

I urge the House, if it does not accept the amendment in its current terms, to understand that this is a problem that faces us, and we must deal with it as a House.

[Lord Taylor of Holbeach (Con)]

Perhaps I may say a few words as the predecessor of my noble friend Lord Ashton of Hyde as Chief Whip for the Government in this House. When I was serving under the noble Baroness, Lady May, she was very keen to make sure that the numbers in this House did not increase exponentially. We have the noble Lord, Lord Burns, in his place today, to thank for a very good report on not increasing the numbers in this place.

I spent a lot of time, along with my noble friend, trying to urge people to retire when they could no longer participate in this House or do anything to add to our deliberations in any way. I felt that we needed to do something about this. So when this amendment was pointed out to me, I did not take the view of the noble Lord, Lord Harris of Haringey, although I totally agree with his analysis that it is not covered by the Short Title of the Bill, except for the reference to “hereditary Peers”. This should apply to all Members of the House, and I urge the Government, when they come across this issue on Report, to propose their own amendment to address it on behalf of the whole House, or to suggest ways in which we can do so with the support of all Benches. The need to achieve this objective has been very well explained.